Marriage and adoption by homosexual couples
In accordance with the Constitution (Part II)
By: Geraldine Gonzalez de la Vega *
In my previous note, I spoke to Action Unconstitutional (AIPGR) filed with the Supreme Court (SCJN) by the Attorney General's Office (PGR) against the reform of Article 146 of the Federal District Civil Code allowing marriage between same sex. The same day he approved the reform, tried to amend without success, Article 391 of the same order to prevent gay marriages could take. The Prosecutor considers that there is a normative relation between reform and Article 391 unchanged, and therefore requests a review of the constitutionality of both rules.
According to Article 64 of the Regulatory Law of the fractions I and II of Article 105 of the Constitution (Act which regulates the action of unconstitutionality and the Constitutional Controversies) the legislative body that issued the standard, that the Legislative Assembly of DF (ALDF) and the executive body that issued, ie the Government of the DF (GDF) should report containing the reasons and foundations designed to support the validity of the contested rule or otherwise of the claim of unconstitutionality.
February 23 The two reports were filed in the Supreme Court's:
Report of the Federal District Legislative Assembly
The report is flawless in its structure is very clear. I think it's a must read for anyone interested in the issue of sexual freedom, gender and rights and constitutional law. The document is very well supported with modern literature, scientific studies, decisions of other courts and opinions of professionals. Is divided into three parts:
I. Permissible to the challenge to Section 391 of the Civil Code of the City The ALDF considered irrelevant to review the constitutionality of Article 391 as not being modified on December 21, 2009, the time to check their conformity with the Constitution has expired (this rule is in force since May 2000). The ALDF is estimated that there is no normative relationship between Article 146 and 391, why which has been established that a rule could be revised even if the deadline for review had expired. ALDF argues the absence of a regulatory system between the two articles. It is clear that the ALDF would have to argue the expiration of the term for the revision of this standard. However, there is a theory of jurisprudence of the Court said that to integrate a system must have a direct relationship between them inseparable. ( UNDER LAW AGAINST. TO CHALLENGE LEGAL SYSTEM AS NECESSARY TO CONSTITUTE A TRUE UNIT. 2a. / J. 100/2008. 04/06/2008) In it, could strip the Court the reason for revision.
II. Constitutional basis for the reforms at issue. This is one of the richest parts of the report because it is the presentation of the theoretical framework of discrimination against gay literature with a strong battery.
a) Discrimination. Explains the three ways in which discrimination: law enforcement, and concealment of pathologizing homosexuality. The repression is primarily concerned with the criminalization of preferences with imprisonment. In Mexico, pursued in the early twentieth century by way of "attacks on morality and decency." Pathologizing is refers to its classification as a disease or psychological disorder, which consequently leads to stigmatization. The declassification of homosexuality as a disease began in 1973, the WHO did in 1990. It makes clear that homosexuality is a sexual behavior. The cover is defined as a consequence of stigma and homophobia, as these prejudices are brought to standard. Homosexuality presents a false narrative in popular and legal and that creates discrimination. Later contest the main prejudices against homosexuals, "which can not form stable relationships," "are not good parents" or that "spill over to children." The ALDF believes that the claim of attorney with the AIPGR is homophobic, authoritarian and seeks to cover up the homosexuality legally denying them the right to marry and form families, before it puts forward a strong argument: " The PGR claims that the Court declare that homo families and gay couples are prohibited by the Constitution or at least that the Constitution does not value or protect them, including the Constitution seeks their marginalization in the interests of aclanzar the ideal family model. The attempt to marginalize homosexuality is the way that homophobia aims to move when it has not been deleted. "
b) Right to Equality. It is argued that reform is inclusive. Do not allow same-sex couples to marry, and therefore excludes discrimination and this is contrary to the Constitution.
c) Freedom of expression. Here I think it has one of the strongest arguments of the ALDF for gay marriage. It is argued that marriage is a form of expression. E l reasoning is that if it is acknowledged by the Court to have the right to self determination and from there, the right to identity and from this follows the right to sexual identity, marriage appears as a symbolic act, performative, as a form of expression allows me to express my sexual identity and also the legitimate in the public domain. The assumption is that gay people not only want to marry so involved (rights and obligations) but for what it means socially (legitimacy). " Marriage is expressive conduct. This extension is important because of its link with the values \u200b\u200bof the free development of personality, diversity and equity ... [And] given the importance that society attributes to marriage and its consequences in our culture, to deny gay couples are denied their right to self-definition. To recognize marriage between same sex, the state validates their legitimate senders and their message. Therefore not be extended to same-sex couples, limited their freedom of expression. "
III. Response to the concepts of invalidity raised by the PGR. The ALDF refutes the arguments presented in the AIPGR for violation of various articles of the Constitution:
a) Article 16 and the drive for reform. The ALDF argued that the reform does not intervene, transgresses, limited rights, on the contrary, expands, and therefore which is not necessary to justify the reasonableness of the reform. The ALDF disputes the idea that the PGR should have demonstrated why the fact that same-sex couples could marry was discriminatory and therefore why it was necessary to reform the Civil Code. Shows that the concept of marriage and family filed in AIPGR is wrong, because "l characterization to make marriage and family is exclusionary, discriminatory and places the state above the people. Reproductive ability is not necessary or sufficient condition to form a marriage or family, or partner or marriage is necessary, nor sufficient to raise a family. " In sum, says the ALDF, the extension of rights is constitutional and does not require proof of their necessity. With regard to Article 391, if there was no change, how is that intended by the prosecutor that the ALDF "generate arguments for not changing a rule that was changed?"
b) Article 4 and the concept of family. The ALDF rejects the concept of family with the AIPGR arguing that it is based on dubious constitutional interpretation. The PGR's approach to reform violates the concept of family is protected by Article 4 is unfounded, says the ALDF, as the Attorney offers an interpretation of this unsubstantiated. The ALDF blemish this interpretation of authoritarian and based on ignorance of the characteristics of Mexican society. "The concept of family in the Constitution and therefore marriage must conform to the prohibition of discrimination, so the Civil Code reform, the FD is valid."
c) Articles 1 and 4 and adoption. Demonstrates the falsity of the allegation that the Attorney General the possibility of gay couples to adopt, would represent an affront to the rights of boys and girls or So says the ALDF, part of presumptions. The ALDF believes that the arguments AIPGR in attempting to impose a family and are based on prejudice, and that does not make a single test of this. "The Attorney is to place the highest court in a false debate because he never specified what the conflict of laws." The ALDF explained that Article 391 (and 390) are the mechanism designed to ensure the suitability of candidates to act adoption, being hetero rules (ie, by their own force does not cause injury to occur until the first application of the law) will be case by case decision where the interests of the child by judges and administrative authorities. "The best interests the child must be weighed case by case basis and no budget through identification with an ideal model of family, otherwise it would no longer consider precisely the interests of each child. "The ALDF justifies the Civil Code reform as a concretization of the third paragraph of Article 1 of the Constitution, that is seeking to achieve equality of all before law, and explains that if there had been differential treatment in respect of adoptions, yes it would have been unconstitutional. The ALDF concludes "By express constitutional mandate is not admissible to presume" prejudice "on the suitability of a person to be a parent based on their sexual preference ... Until proven otherwise, neither the legislature nor the right applicator can boast a lower fitness gay couples to care for a child. "
d) Legal certainty. The penultimate concept of constitutional violation is referred to the principle of certainty. In the AIPGR is argued that the entry into force of the reform will cause a state of legal uncertainty constitute a conflict of laws between the contested rules and other legal provisions of acts of civil status. The ALDF reject this argument ñalando constitutional Article 121 which states expressly that legal acts an entity should be recognized in others. It also explains the ALDF, there are theses of the Supreme Court's jurisprudence establishing that violate rules while others, the actions of each entity will be completely valid, since they are based on valid laws, and that those laws are valid, the legislature must be competent to issue them. The ALDF demonstrates the competence to legislate in civil matters (art. 122).
e) Article 133 and drive the legal system. The latter concept refers to disputed the interpretation of Article 133, which establishes the hierarchy of sources in the legal system Mexican. The PGR believes that by altering the composition of the marriage and allow gay marriages to take the ordinary legislature overrides the Power Reviewer, it deviates from the family model that Attorney believes that the Constitution imposes. The problem is that unconstitutional the PGR wields depends on the acceptance that there is a family model imposed by the Constitution, so that, according to AIPGR, any deviation is an affectation to art. 4 CPEUM, which is false, as demonstrated in the Report of the ALDF. The Mexican Constitution does not have any closed concept of family, leaves him open to interpretation. A democratic state should make use of interpretation dynamics of the Constitution, it allows the inclusion, pluralism and tolerance, thus only a Constitution than the passage of time.
Report Federal District Government.
The Report of the Head of the Federal District IALDF complements, is a longer document that is based on two basic themes: family and marriage.
1. The IGDF presents information to rebut fully supported the concept of "ideal family" and marriage argued in AIPGR. The report presents statistical and scientific data on the integration of families in Mexico. shows that the concept is not unique within the different rules in the states of the Republic and that the concept of family has had a dynamic transformation especially in the last three decades, since 1975 to date, is when you have given the biggest changes in the family in Mexico and the world. The variety of family homes and the diversity of establishing personal relationships within them is an alternation very different from traditional family forms, as estimated by the GDF to the assessment of the PGR on marriage and family models are incorrect. The IGDF argues that "the previous consistency [of the patriarchal family], derived from the lack of freedom could soothe the consciences of right-thinking but not for a moment assumed an ethical level than the current family relations chaired by the freedom and tolerance ... [For] As in the dictatorial regimes, authoritarian families are also looking to be more quiet. " Therefore, GDF said, speaking of contemporary family is talking about the twenty-first century family, not existed when the process began institutionally revaluation of women (1974). "Reforming the Article 146 of the Civil Code for the Federal District to establish the right to marriage between persons of the same sex is a matter of civil rights and equal citizenship. "He explained that e No reason that the family is central in life of societies, it is transformed, too, when those companies are unchanged. According to the National Survey of Family and Vulnerability, 2007, prepared by the National System for Integral Family Development and the SSA: the number of households increased rapidly, although with a membership shrinking and increasingly constituted by parent households, blended families and sole proprietorships. This is because the raison d'être of the modern family is not mere survival or protection of its members, but the pursuit of personal fulfillment and happiness. Therefore, the estimated GDF l to reform is conceived as an action against discrimination and the recognition that families formed from the union of two persons of the same sex, enjoy the same rights as those families consisting heterosexual couples. "It is a reform that recognizes a right to those who were denied to him before formalizing exclusive situations and serves to integrate different realities to the statistically most frequent. Represents a step forward in our social and democratic growth even if it involves a change in historical traditions, precisely because some of those traditions are what exclude or deny rights. Recognition of the right to marry for same sex is legal or social nature, which aims ensure the full exercise of the rights and obligations governing the relationship and coexistence between people of same sex with the same requirements and effects as pre-existing marriages between people of different sexes. "
The IGDF explains the context of the reform of article 4 of the Constitution, and in 1974 is that while you might think the "ideal family" was the traditional family, the fact is that the idea of \u200b\u200bplacing a constitutional level the protection of the family sat in the family policy (CONAPO, Family Planning), Government of Luis Echeverría had a more liberal court which the attorney seeks to read the preamble to the reform. GDF makes clear that the Constitution is a living document that must be construed in accordance with the times so that it does not lose its regulations. In this way, in a long argument shows that it is false that there is only one type of family and it is true that the Constitution protects only an ideal type of family, leading to discriminate or leave unprotected all that are different from the one formed by a father, mother and children. Explain why it is true that the Constitution talks about that marriage should be between a man and a woman and it is false that only through heterosexual marriage to form a family that is not true that only through marriage and family form a it is false that the purpose of marriage is procreation.
GDF clear that no international instrument defining the concept of family, let alone marriage, but it obliges signatory states to not affect the principle of nondiscrimination. concludes that constitutionally There is no foundation to support a family can only be established through marriage between heterosexuals.
2. With regard to the concepts of strictly legal violation, the GDF argues in the same direction as the ALDF so no point in repeating the arguments here. rejects the violation of the principle of legality in section 3 of the document and rejects the arguments of violation of the principle of legal certainty and to Article 133 in Section 5. should be added that to show that they are trying to a social relationship that claim to be legally regulated, and GDF l l argues that to the exclusion of homosexuals from marriage is an element of stigma, inequality and restriction of rights against a population group. "Reforms for the recognition of marriage between same-sex couples legal rights to social sector so far excluded. Therefore, is sufficient justification to redefine marriage, that upsets the other legal institutions derived from it and contrary to what the Attorney said in the legislative process is credited adequacy the implicit prohibition to same-sex couples to marry, implied rape the fundamental right of non-discrimination on grounds of preferences. "He concluded:" if the legislation was challenged as a reason to carry generator full practice the principle of nondiscrimination, the reform does not exist due to no protection of rights under the union between same sex, but that people who favored such unions were being denied access to the specific figure of marriage, because domestic partnership is a different shape designed for other purposes, for what both can co-exist for individuals to choose: marriage is designed to share life as a couple where both are reserved for sexually the other; the domestic partnership is designed to protect relationships of familiarity and solidarity.
3. In a fourth point, the GDF rebate AIPGR's arguments against the possibility of adoption by same-sex marriages. GDF refutes the presumption of AIPGR that the mere fact that a homosexual couple adopts a child will cause injury, and does so by presenting results and data from various studies homopartentales families in several countries. In all concluded that there is no harm to children and youth and on the contrary, studies often yield results positive training and personal development of children raised by homosexual couples. "The large majority opinion is that there is no scientific study that shows some disadvantage in the child's psychological development .. Boys and girls from families homo no different from those raised with heterosexual parents. The belief [that causes harm to the child] is intended to support the need for both figures for boys and girls can buy their sexual role, but studies show that society tends to reduce the traditional dichotomy of male / female and reality is that of father and mother as a rule is limited. The division of male / female is also undergoing transformations. "
The GDF concludes that no single empirical study that shows some disadvantages in the development of the children of homosexual couples. The way the State to better ensure the child's best interests will be reviewed case by case basis the adequacy of the couples who make an adoption application, it must pass the strict scrutiny of the authorities and that is what guarantees the welfare of the child and the prohibitions and prejudices. And, says GDF, "is as has been done so far, first the interests of the child and in all cases a judge will ultimately determine. Not ensure the child's interest through general rules that exclude people. For all the foregoing, the fears surrounding the promoter in relation to the issue of adoption by same-sex couples is unfounded. "
My Conclusion:
married is a right. Marriage can not be exclusive to heterosexual couples because it has the purpose of procreation, but a host of other reasons that spouses decide: the company and affection, mutual interest and also, procreation and the establishment of an "ideal family." That one is the right to self determination. That's what freedom is all about. Marriage is a performative act is an expression, and thus is related to the exercise of various freedoms, including that of expressing identity. Imply the possibility freedoms exercised or not, without hindrance, while not hurting others. Then wonder what's wrong with a couple of women or married men?
On the other hand, any type of family, traditional or modern, nuclear, extended or recomposed, heterosexual or homosexual is guaranteed a priori, a good upbringing. What is required is that the parental figures rather exercise their duties of care and education. It is the task of the state and families, especially parents and schools, to participate in including everyone and take responsibility for eliminating discrimination that people could be gay and young members gay or lesbian parents. If we really want to ensure the best interests of children, we must teach them to respect differences and not discriminate or permit discrimination against anyone. Children are not born prejudiced, they are taught by adults.
With regard to the decision to take Court is important to note that before the constitutional court is not a winner and a loser, as well as decided by the Constitutional Court, does-what to do, on behalf of the Constitution. The Court, as part of the political process, also directed and influenced by him, and she in turn, will influence, for the purpose of the Constitution is the political community (Peter Häberle). The Court did not rule in favor of the City or on behalf of the Attorney General ruled in favor of the Constitution.
Data:
The First National Survey Exclusion, Tolerance and Violence in Public Schools, SEP 2008, 52.8% said they hate to share classes with non-heterosexuals.
The National Institute of Statistics and Geography, in 1990 75% of Mexican families were traditional (father, mother and children) for 2000 were 69%, and in 2005 had decreased to 68%. In contrast, single-person households have increased since 1990 although they were not counted in 2000 represented 6.3% of households in 2005 made the leap to 7.5%.
National Council Details de Población (Conapo) del año 2009 muestran que poco más del 52% de las familias son de tipo nuclear o tradicional, es decir, conformadas por papá, mamá e hijos; 9% de ellas son de tipo monoparentales, e decir, conformados por hijos y uno de los padres.
(Datos de El Universal 07/02/2010)
Entre 2007 y 2010 s celebraron 753 Sociedades de Convivencia, de las que 418 fueron parejas de hombres, 297 de mujeres y 38 de hombre y mujer. El 4 de marzo entró en vigor la reforma al 146, 19 parejas homosexuales presentaron su solicitud marriage to the Civil Registry.
* Geraldine Gonzalez de la Vega is constitutional and essayist. She is the author of the blog Gera's Place. Has been devoted primarily to issues related to fundamental rights and the theory of the constitution. She has taught at the National Institute of Criminal Sciences at the Universidad Anahuac del Sur, Universidad Autonoma del Estado de Mexico and Universidad Autónoma Benito Juárez. Currently done postgraduate studies in Germany. Twitter: @ geraldinasplace
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